64th Congress "I 
1st Session j 


SENATE 


Document 
No, 454 


DUTY OF COURTS TO REFUSE TO EXECUTE 
STATUTES IN CONTRAVENTION OF LAW 


SECOND REPORT 

OF THE 

SPECIAL COMMIT FEE UPON THE DUTY OF COURTS 
TO REFUSE TO EXECUTE STATUTES IN EXCESS OF 
OR IN CONTRAVENTION OF THE FUNDAMENTAL 
LAW, PRESENTED AT THE THIRTY-NINTH ANNUAL 
MEETING OF THE NEW YORK STATE BAR ASSOCI¬ 
ATION HELD IN NEW YORK CITY ON 
JANUARY 14 AND 15, 1916 
^ l C 7 . ' * * ■ 





PRESENTED BY MR. O’GORMAN 

January 26, 1916.—Referred to the Committee on Printing 


WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1916 










REPORTED BY MR. FLETCHER. 

In the Senate of the United States, 

June 2,1916. 

Resolved.^ That the pamphlet submitted by the Senator from New 
York (Mr. O’Gorman) on January twenty-sixth, nineteen hundred 
and sixteen, entitled “ Second Report of the Committee on the Duty 
of Courts to Refuse to Execute Statutes in Contravention of the 
Fundamental Law,” submitted to the New York State Bar Associa¬ 
tion, be printed as a Senate document. 

Attest: 

James M. Baker, 

Secretary. 


2 


D. of D. 

JUN 23 1916 


DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES IN CONTRAVENTION 
OF THE FUNDAMENTAL LAW. 


To the New York State Bar Association: 

The undersigned, the special committee upon the duty of courts 
to refuse to execute statutes in excess of or in contravention of the 
fundamental law, respectfully report as follows: 

Following the approval of the resolutions accompan 3 dng your 
committee’s first report and the printing of both report and resolu¬ 
tions as Senate Document 941, Sixty-third Congress, third session, 
presented by Senator O’Gorman, a large number of copies of such 
report were distributed to other bar associations, to the press, to the 
various press associations, to the magazines, to many law reformers, 
to some public libraries, to many law-school libraries, university 
libraries, and college libraries throughout the Nation. 

The following is a list of the principal articles since the publica¬ 
tion of your committee’s first report, either supporting or combating 
the theory of the usurpationists that any decision enforcing the 
Constitution as against a conflicting statute was either a judicial 
usurpation or else an extra legal act: 

CHARGE OF JUDICIAL, USURPATION WHEN COURTS REVIEW 
UNCONSTITUTIONAL LAWS. 

Howe, Dr. Frederic C., Globe, April 28, 1915: Legislature Should 
be Given Absolute Power in All Matters Kelating to Social Justice. 

Seager, Prof. Henry Eogers, New York Times, March 30, 1915: 
Defenses of Judicial Keview of Legislation. 

Haines, Prof. Charles G.: Judicial Keview of Legislation in 
Canada, 28 Harvard Law Review, 565-588. 

Watson, David K.: Invalid Legislation, Senate Document No. 
964, Sixty-third Congress, third session. 

Wheeler, Everett P.: The Supreme Court a Coordinate Branch 
of the United States Government, 24 Yale Law Review, 300-315. 

No further article has been discovered by your committee advocat¬ 
ing the views of the American followers of Mr. Holder, of South 
Australia, that the enforcement of the Constitution by the State 
courts is so unique and archaic that it should be curtailed by State 
plebiscites as to the propriety of impropriety of any specific State 
court decision, ignoring the duty of both Federal and State courts 
to review the validity of all State laws impairing the obligation of 
contracts, or denying due process of law or the equal protection of 
the laws under the Federal Constitution. 



4 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 

Historically the genesis of the proposal for the recall of judicial 
decisions seems to have arisen in the resolution introduced by Mi. 
Holder, of South Australia, in the Australasian Federal Convention 
of 1898, to the elfect that in the event of any Commonwealth law 
being declared ultra vires by the high court, the executive may^ 
upon a majority A’ote of each house of the legislature, lefei the laA\ 
to a i)lebiscite of the electors, and if aiiproved by them the constitu¬ 
tion shall be deemed to have been enlarged, and the law shall^ be 
deemed to have been intra vires from the passing thereof. This 
resolution was withdrawn by Mr. Flolder after a debate in which it 
a])peared that he had no supporters in the Australasian constitu¬ 
tional convention. (H Official Itecord of the Debates of the Aus¬ 
tralasian Federal Convention, Melbourne, 1898, 1717-17*21, 172)1- 
1782; Moore Constitution of the Commonwealth, 2d ed., 8()0, 3G1.) 


I. GENESIS OF THE CAjMI’AIGN OF 1 iHFOR THE TOTAE OK PARTIAL 
SUPPRESSION OF J1 DICIAL REVIEAV OF THE VALIDITY OF LAAVS. 

In ‘‘Nationalism and the judiciarv,'' ex-President Koosevelt says 
(Outlook, ^lar. 4, 1911, p. 490) ; 

The Supreme Court itself, for the great henetit of the Nation, read its own 
place into tlie (’onstitntion after tlie lapse of years, during which no one, none 
even of the founders of tlie (Constitution, had dreamed of giving it such a place. 

And further (p. 491) : 

Those who, on abstract grounds, insist that the courts neVer have anything 
to do with the emhodiment of public policy into law ought to pay heed to the 
simple fact that, under Marshall, the Supreme Court of the United States 
worked a tremendous revolution, not merely in ordinary law hut in the funda¬ 
mental constitutional law of the land. When Marsliall was appointed, as 
.Judge Spring has shown, it was usually assumed, when the subject was dis¬ 
cussed at all, that Congress, like the English House of Commons, could pass 
upon the validity of its own acts. When the adherents of .Jefferson and Madi¬ 
son opposed this proposition, as they did in the Iventucky and Virginia resolu¬ 
tions, the position they took was that the legislature of each State was a judge 
of constiiUtional matters at issue between the States and the Nation and that 
the States could declare void an act of Congress. No one at the time thought 
of turning to the Supreme Court as the arbiter in such a matter, and this, 
although the men who had made the Constitution were administering it. But 
Marshall, in his first constitutional opinion, in an argument which, as Chan¬ 
cellor Kent said approached to the precision and certainty^ of a niathematical 
demonstration, held that the Suiireme Court possessed in'itself the ultimate 
power to declare whether or not an act of Congress was void. Nowadays the 
authority of the court to decide that an act of the legislative department, 
whether of the Nation or of any of the States, is repugnant to the Constitu¬ 
tion seems self-evident. But no such power was expressly prescribed in the 
Constitution, and not only .Jefferson but .Jackson, with an emphasis amounting 
to violence, denounced Marshall’s position and asserted that no such power 
existed. The reason why Marshall was so great a Chief .Justice, the reason 
why he \yas a public servant Avhose services were of such incalculable value to 
our people, is to be found in the very fact that he thus read into the Constitu¬ 
tion what was necessary in order to make the Constitution march. 

In “ 7Y iscoiisin: An object lesson for the rest of the Union," ex- 
President EooseATlt says (Outlook, May 27, 1911, pp.-148, 144) : 

I doubt whether American students of social economics fully realize the 
extraordinary work that has been accomplished during the last decade and is 
now being accomplished in the State of Wisconsin under the lead of Senator 
Ua Follette and of the group of entirely practical and at the same time zealously 
enthusiastic workers who have come into active control of the State mainly or 


DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 5 


largely because of the lead lie has given them. * * * ^Ve, who boast that 

we represent the freest people on the face of the earth, that onr Nation is the 
home of popular rights and equal rights, and of justice as between man and 
man, when we try to translate onr words into deeds, have to go to Australia for 
onr ballot and have to study what is done in England or Cxermany for the pro¬ 
tection of wageworkers (and, having studied them and tried to follow the 
example set for us, are then obliged to see some State court, still steeped in the 
political philosophy of the eighteenth century, solemnly declare that America, 
alone among civilized nations, is incompetent to right indnstiaal wrongsl. * 

But, for our good fortune, one of onr States—the State of 'Wisconsin—has 
now developed such a body of public oiiinion and such a body of leadership 
among its public men and its students that heri'after we have good reason to 
hope that we can find within onr own borders what we need. We can now, at 
least in many cases, look for leadership to Wisconsin when we desire to try to 
solve the great social and industrial problems of the jiresent and the future, 
instead of being forced always to look abroad. 

Theodore Ivoosevelt, “Nationalism and progress" (Outlook, Jan. 
14, 1911, p. 59), says: 

Wisconsin offers the best case in point. Under the leadership of Senator La 
Follette, AVisconsin during the last decade has advanced at least as far as, and 
probably further than, any other State in securing both genuine popular rule 
and the wise use of the collective power of the people to do what can not be 
done by merely individual effort, the University of Wisconsin, by the way, 
playing a very important part in the movement. 

Theodore RooseA^elt, “A charter of democracy" (Outlook, Feb. 24, 
1912, p. 393),says: 

Among tlie States that have entered this held AAdsconsin has taken a leading 
l>lace. Following Senator La Follette, a number of practical workers and 
thinkei’s in AATsconsin have turned that State into an experimental laboratory 
of wise governmental action in aid of social and industrial justice. They have 
initiated the kind of progressive government which means not merely the preser¬ 
vation of true democracy, but the extension of the iirinciple of true democracy 
into industrialism as well as into politics. 

While ex-President Roosevelt Avas not unwilling that the judges 
of some elective State courts of last resort should he criticized as 
fossilized or reactionary because they enforced the fourteenth amend¬ 
ment as they interpreted it, he avoided impugning their motives. 
(Theodore Roosevelt, “The judges, the lawyers, and the people,” 
Outlook, Aug. 31, 1912, p. 1004; “The right of the people to rule,” 
Outlook, Mar. 23, 1912, p. G19.) 

Beginning tAvo Aveeks after the publication of ex-President Roose- 
atU s indorsement of Senator La Follette and his Wisconsin adoption 
of German ideas, La Follette’s Weekly Magazine published, or com¬ 
mended, three articles, all charging the Federal Supreme Court Avith 
judicial usurpation in holding any laAvs unconstitutional, and one of 
Avhich charged some dead Justices of the Federal Supreme Court 
Avith serAdlity as Avell. 

On June 3, 1911, La Follette’s Weekly Magazine reprinted ex- 
President Roosevelt’s Outlook article of May 27, 1911, heretofore 
quoted. 

On June 10, 1911, it editorially called to its readers' attention as 
“ among the most valuable and interesting contributions u])on mat¬ 
ters of goATrnment that haA^e a])peared in recent years “Our judi¬ 
cial oligarchy,” by Gilbert E. Roe, Avhich it ])ublished as a Aveekly 
serial commencing June 17, 1911, and ending September 16, 1911. 

When “Our judicial oligarchy” was published in book form in 
1912, Senator La Follette indorsed Mr. Gilbert E. Roe’s vieAv that 
“ the^ courts liave usurped the poAver to declare laAVs unconstitu- 


6 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 


tional” (pp. 17, 23-29) in the following terms (introduction by 
Kobert M. La Follette, pp. vi-vii) : 

The judiciary has grown to be the most powerful institution in our Govern¬ 
ment. * * Evidence abounds that as constituted to-day the courts per¬ 

vert justice almost as often as they administer it. Precedent and procedure 
have combined to make one law for the rich and another for the poor. * » » 

Moreover, by usurping the power to declare laws unconstitutional and by pre¬ 
suming to read their own views into statutes without regard to the plain inten¬ 
tion of the legislators, they have become in reality the supreme lawmaking and 
lawgiving institution of our Government. They have taken to themselves a 
power it was never intended they should exercise; a power greater than that 
intrusted to the courts of any other enlightened nation. And because this tre¬ 
mendous power has been so generally exercised on the side of the wealthy and 
powerful few, the courts have become at last the strongest bulwark of special 
privilege. They have come to constitute what may indeed be termed a “ judicial 
oligarchy.” 

On July 15, 1911, La Follette's AVeekly Magazine published an 
editorial commending to its readei's' a])proval, under the title “The 
usurped power of our courts,” Allan L. Benson's “ The usurped power 
of the courts,” then commencing in Pearson’s Magazine for August, 
1911. The editorial appears to indorse Mr. Benson’s charge that the 
Supreme Court “usurped” the power of judicial review, as well as 
his charge that the courts “ are exercising despotic power.” 

On September 2, 1911, La Follette’s Weekly Magazine published 
a further editorial commending to its readers the September number 
of Allan L. Benson’s “ The usurped power of the courts ” in Pearson’s 
IMagazine. 

On August 19, 1911, La Follette’s MTekly Magazine published an 
article apparently approving Senator Robert L. Owen’s speech criti¬ 
cizing the Supreme Court for having “ unlawfully assumed the right 
to declare acts of Congress unconstitutional; * * have over¬ 

ridden the rights of State laws in a similar manner.” 

The Socialist view of the Supreme Court of the United States is 
found in Gustavus Myer’s History of the Supreme Court of the 
United States (1912). ‘ Mr. Myers‘charges the Federal court of last 
resort with judicial usurpation in reviewing aiiy laws (pp. 130, 137, 
158—160, 225—227, 262, 263) as the foundation on which he charges 
servility (pp. 135-158, 167-194, 219-222, 283-354), and he also 
charges many of its deceased members with subserviency (]U). 170, 
19.5-196, 204-217, 225-227, 242-243, 260-267, 269-274, 2t7, 281-282, 
4.32-439, 471-479, 489-507, 509, 510, 514, 517-.527, 529-576, 586-617, 
624-636, 639-640, 645, 651-660, 703-715, 729-766, 770-779). 

It is not surprising that those who, during and since the last presi¬ 
dential campaign, because they overlooked or ignored the history of 
the fourteenth amendment (Flack, The Adoption of the Fourteenth 
Amendment), were willing to criticize the elective State courts of 
last resort, and in one instance, some justices of the Supreme Court, 
as fossilized or reactionary for enforcing the fourteenth amendment* 
balked at indorsing a campaign based on the Socialistic platform 
and theory that the Supreme Court of the United States had from 
the beginning practiced usurpation and judicial despotism, and that 
all 01 most Ameiican courts of last resort were judicial oligarchies.” 

Your committee’s first report shows that the principle of judicial 
review was deliberately included in the Federal Constitution, fol¬ 
lowing the many precedents of the British privy council, as well as of 


DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 7 


Lord Chief Justices Coke, Hobart and Holt, upholding court review. 
(Keport of Nov. 28,1914, pp. 12-94.) 

Gustavus Myers, the Socialist historian, asserts that the colonial 
justifications of the American Revolution, viz, that the stamp act 
was unconstitutional, because it levied a tax on British subjects in 
the thirteen colonies without their consent, also because it impaired 
the obligation of the colonial charters, Avere judicial usurpations of 
the colonial courts and laAvyers, and Avere founded upon prior English 
judicial usurpations by Lord Chief Justices Coke (Hobart, Holt) 
and their associates. In short, leading Socialists base their platform 
attacks of 1912 upon the Supreme Court for alleged judicial usurpa¬ 
tion (National Socialist platform, 1912; “Political demands”) upon 
the theory that George III'and Lord North Avere right in Avaging a 
civil war against the thirteen colonies in order to establish their 
claim of parliamentary absolutism over all British colonies, as well 
as over all British subjects, and that our ancestors Avere Avrong in 
successfully resisting parliamentary absolutism in the American 
Revolution. Onl}^ the Tory historians of the American Revolution 
champion these Socialist claims for absolute legislative poAver by the 
Parliament of the parent State over thirteen other civilized States 
3,000 miles aAvay and separated by the Atlantic Ocean. No modern 
British, Australian, Canadian, or South African historian or states¬ 
man upholds this reactionary aucav. 

Gustavus Myers’s History of the Supreme Court (1912) says (p. 
133)^: 

But what especially aroused fears was the judiciary. During‘the Revolution 
only one of the royal judges in Massachusetts, for example, had espoused the 
popular cause, and this particular one—Cushing—did not do so until he was 
virtually compelled to give an expression of opinion; he then became one of 
the most stalwart and timeserving of the band of reactionaries. During more 
than a century the judges had acted arrogantly and often corruptly; they had 
usurped powers never granted to them, and had assumed the right to void 
laAvs as much a*s they pleased. 

And further (pp. 136, 137) : 

The class seizing hold of the reins after the American Revolution had been 
won Avell knew that hoAvever that Revolution abolished certain forms and de¬ 
tails, it did not touch something of far more enduring and incisive effect. 

The pillar left untouched Avas the long line of privileges and precedents estab¬ 
lished by a powerful feudal aristocracy and maintained by the courts since the 
reign of Richard II of England, and even before. These precedents had been 
established for the twofold purpose of justifying the maraudings, thefts, and 
summary frauds by which the dukes, lords, ami barons had appropriated the 
British soil, and with the object of holding the working class in complete sub¬ 
jection. They were principles of law enunciated by judges put on the bench by 
those selfsame pillagers; very often those judges were avoAvedly corrupt, like 
Lord Bacon, who admitted taking bribes. * * * The decisions of these 

judges Avere followed by the American colonial jhdges; and presently Ave find 
the Supreme Court of the United States, Avhen in need of precedents, going back 
to Lord Coke, Lord Bacon, and such jurists. 

And further (pp. 157, 158) : 

To understand fully the serene confidence that the landholders and traders 
of the ReAmlutionary period had in the courts as the final and unchangeable 
bulwark of their interests, and Avhat they expected from the judiciary, it is 
only necessary to point out that the courts during the Revolution put themselves 
above laAV. They usurped poAver Avhen they Avilled, and construed laAV as they 
pleased. Wilson kneAV that many of their acts Avere sheer usurpations, for, in 
a pamphlet, he defended usurpation. When he caused that memorable clause 
of his to be inserted in the Constitution, he kneAv, also, that the usurpations 


8 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 


already put in pi’actice Nveuld servo as precedents t<^ invite and justify further 
usurpations. 

And fui’ther (pp. lo8, 159) : 

P>ut the usnrpalions of the judiciary extended to the more serious and 
sinister len^tli of anindlin;^ lef?islative acts. 

Court usurpation already established. 

This usurpation Shirley seeks to explain thus: 

“ In the dark days which preceded the Uevolution,” he says, “ the people 
of the Colonies ha<rheen thoroughly indoctrinated with the idea that the acts 
of Parliament of which they compiained were unconstitutional, and therefore 
void, and that in consecpience they were justitied in resisting their enforcement. 
Judge Wilson, in a great pamphlet, had urged with great ingenuity and force 
that it ’>vas the idght and the duty of the courts to set aside those acts. This 
view was supportefl by many of the most eminent politicians, statesmen, and 
jurists of liiat day. '^Idds vloctrine had sunk dee[) into the jtopular mind. 

But it was not against acts of Parliament that tlie courts presumed to usurp 
t:his power, 'the unpo])ulaiity of the laws passeti by Ihirliament supplied a 
very gooii ])retext and justitication for the assumption ot a i^ower directecj not 
against Parliament, hut against the mass of the peoi)le. 

And further (p. 160) : 

That this usur[>ation of i)ower was exercised against the legislatures is 
admitted by Shirley in Ids next p.aragraph. “ The judges in Rhode Island,” 
he wrote, ” had set aside an act of the legislature as unconstitutional. The 
same is true of New .Jersey, In 1788 and 171)3 the court of appeals in Virginia 
liad done the same thing. The i^ower of the highest court to set aside such 
acts was recognized in Xew Hampshire soon after the adoption of the written 
constitution of ]7S4. From 1790 to 1799 they were repeatedly declared void by 
the highest court, and sometimes by inferior tribunals.'' 


IT. ATTACKS ON .U'DICIAL KEVTFAV DUKINti 1Ui:’,-t4, BASED ON UNWAR¬ 
RANTED ASSERIIONS THAT THE yrE:MBERS OF THE FEDERATE CONVENTION 
01 1787 WERE-NOT JUST NT ERESTED. 


Tliei'e remains to be considered the claim of some Socialist leadei'S 
of thoii^ht who, agreeing with Marx that/' the key to” the Marxian 
“Socialist doctrine is the economic inteipretation of histoiw with 
the ciass-sti-nggle doctrine following in its train” (see “Marxism 
versus Socialism,” V. (I. Simkhovitch, 23 Political Science Quar¬ 
terly, 197, 212, 219. 654, 655), now assert that we have a “dishonest 
Constitution,” rejiresenting the work of what “to-day would be 
called giafters” (Allan L. Benson’s letter, p. 49) or “a group of 
grafters.” (The chapter is headnoted “ ^Washington and his group ”; 
Allan L. Benson’s Our DishonevSt Constitution, pp. 53, 5, 11, 18-20, 
59, 91, 92.) Mr. Benson’s letter neither cites nor quotes any original 
authorities, and he now only refers to alleged secondary or hearsay 
authorities cited or quoted in Our Dishonest Constitution, Avhere he 
sa^'s (pp. 20. 21, etc.) : • , 


To save jiali-iotie g(MiiIem(Mi the trouble of calling me a liar and a black¬ 
guard, I will say th;U in writing this chapter 1 shall, with one exceiitioii, to 
which I shall call attention, contiiie my (piotations to two hooks. Every state¬ 
ment of alleged fact about “the fathers” may be found either in An Economic 
Interpretation of the (Constitution of the United States, by Prof. Charles A. 
Beard, of (Columhia I iiiversity, or in [citing another book from which 'your 
committee are unable to draw any unfavoi'alile inferences to the (Constitution 
or to the motives of its framers]. 

Of the 55 delegates who attended the Constitutional Convention 
Mr. Benson says that— 


DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 9 


Fourteen were land speeulators. Twenty-four were money lenders. Eleven 
were merchants, manufacturers, or shippers. Fifteen were slaveholders. Forty 
of the fifty-five owned public securities. 

Of these gentlemen Prof. Beard says: 

“ It can not be said, therefore, that the members of the convention were ‘ dis¬ 
interested.’ ” (Our Dishonest Constitution, 51.) 

Next came the gentlemen who had investments in public .securities. They 
were really the largest toads in the puddle. They owned paper that had a face 
value of $60,000,000. They had not paid $60,000,000 for it, however. More 
than half of them had paid only one-sixth or one-twentieth of its face value. 
* * * But the gentlemen who bought the paper at low figures were good 

gamblers. * * * They were determined to try to bring about a new gov¬ 

ernment under a new constitution—a government that would bring the i)aper 
to par. 

“It seems safe to hazard a guess,’’ says Prof. Beard (p. 35), “that at least 
$40,000,000 gain came to the holders of securities through the adoption of the 
Constitution and the sound financial system which it made possible.” (Our 
Dishonest Constitution, 16.) Also that Washington, at the time of his death, 
owned “in Government securities .$6,246.” (Our Dishonest Constitution, 36.) 

Prof. Beard’s An Economic Interpretation of the Constitution of 
the ETnited States says (pp. 119, 150) : 

The overwhelming majority of members, at least five-sixths, were immedi¬ 
ately, directly, and personally interested in the outcome of their labors at 
Philadelphia and were to a greater or less extent economic beneficiaries from 
the adoption of the Constitution. 

1. Public security interests were extensively represented in the^ convention. 
Of the 55 members who attended no less than 40 appear on the records of the 
Treasury Department for sums varying from a few dollars up to more than 

$100,000. * ♦ :i< 

It is interesting to note that, with the exception of New York, and possibly 
Delaware, each State had one or more prominent rei)resentatives in the conven¬ 
tion who held moi-e than a negligible amount of securities, and who could there¬ 
fore speak with feeling and authority on the question of providing in the new 
Constitution for the full discharge of the public debt. 


And further (Beard, p. 151) : 


It can not be said, therefore, that the members of the convention were “ dis¬ 
interested.” On the contrary, we are forced to accept the profoundly signifi¬ 
cant conclusion that they knew through their personal experiences in economic 
affairs the i)recise results which the new government that they were setting 
up was designed to attain. 


Prof. Beard counts Washington as one of the 10 members of the 
convention who vrere. he says, directly and personally interested ” 
by reason of his ownership of })ublic securities. Pie held $(b21G 
worth of Ihiited States securities.” (Beard, pp. Ill, 115.) 

Prof. Beard gives the foreign continental debt in 1789. including 
interest, as $11,710,378.62: the domestic continental debt in 1789, 
including interest, as $10,111,085.91. The State debts were years 
afterwards funded and ])aid at and as $18,271,786.17. (13ear<l, p. 

33; Dewey, Financial History of the United States, pp. 89. 90. 93.) 

Prof. Beard “ assumed that when a member of the convention a[)- 
pears upon the funding books of the neAV government ne was a 
public creditor at the time of the convention. (Beard, p. 75.) 

He also defends Elbridge (lerry against the charge that he voted 
for any motion in the convention "to assume and pay the Continental 
j)aper "money, and because its juiyment was not assumed (and was 
never paid) ojjposed the adoption of the Constitution. (Beaid, p. 


98.) 

Prof. Beard assei ts that 15 out of the 55 attending meml)ers of the 
Federal convention, viz, Abraham Baldwin ($2,500) : Gunning Bed- 


10 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 


ford ($100); John Blair ($13,000); David Brearley ($500); Jona¬ 
than Dayto-» (possibly $8‘2,000) ; Elridge Gerry interest 

$3,500) ; Nicholas Gilman ($6,700) ; Nathaniel Gorham (large, but 
uncertain) ; John Langdon (possibly $25,000) ; James McClurg (pos¬ 
sibly $2,500) ; Thomas Mifflin (jmssibly $500) ; Robert Morris (a 
banker, as such largest holder of public securities in Convention); 
George Read (with his Avife, $13,500) ; Caleb Strong ($16,000) ; 
George IVashington (unpaid balance of his personal expenses as 
Commander in Chief, for Avhich he received no salary; amount un¬ 
certain), are affirmatiA^ely shown by the records of the Treasury 
De})artnient and of the original thirteen States to haA^e either owned 
or lield public securities, other than Continental paper money, in 
1787. The total holdings of the attending members of the conA^en- 
tion, if as assumed by Prof. Beard that they remained at the same 
amount, both at and after the convention, could not have exceeded 
$750,000. (Beard, pp. 71-119.) TAvo-thirds of their then holdings 
must have beer Continental securities; the remaining one-third State 
securities. 

If AA^e leaA'e out of account the foreign debt, it appeal's that some $60,000,000 
AA^orth of potential paper lay in the liands of American citizens in the spring 
of 1787. (Beard, p. 34.) 

It seems safe to hazard a guess therefore that at least $40,000,000 gain came 
to the holders of securities through the adoption of the Constitution and the 
sound financial system AAdiich it made possible. (Beard, p. 35.) 

The refusal of the Federal Constitutional Convention to assume 
any of the State debt, to assume or pay any of the Continental paper 
money Avhich aatis repudiated, and to change or improA^e the status 
of the Continental debt, aa as the cause of much of the factional op¬ 
position among the S})eculatiA^e holders of the rejiudiated Continental 
i:>ai)er money, as Avell as of the State debts, to the adoption of the 
P'ederal Constitution. 

Prof. Farrand says (Framing of the Constitution, pp. Ill, 112) : 

Several members of the convention, among them Gerry, argued strongly for a 
positive injunction upon Congress to assume the State obligations, as a matter 
both of justice and of public policy. The objections to assumption AA^ere based 
mainly upon the fear of benefiting speculators rather than legitimate creditors. 
The question Avas referred to a committee of a member from each State, and it 
was finally compromised by providing that all debts should be “ as valid against 
the United States under this Constitution as under the confederation.” This 
left the matter in the same delightful uncertainty as before. Not long after 
this, Gerry announced his inability to accept the neAV Constitution in the form 
Avhich it had taken, and he soon became openly hostile to it. This hostility was 
charged to his failure .to accomplish the assumption of State debts, for he was 
said to have speculated heavily in this class of securities. * * * Gerry 

strenuously denied holding more than a -very small amount of these securities. 
(To same effect, pp. 176, 177.) 

The niotioiis and debates in the Federal convention on the ques¬ 
tion of assuming State debts and paying the Continental debt fully 
sustain Prof. Farrand’s vieAvs, and Avill be found in 2 Farrand, 
Records of the Federal CoiiA^ention, pages 326-328, 355-356, 412-414. 

See also TI Bancroft. History of the Constitution, 145; I Tucker, 
Constitution of the United States, 482. 

The Federal convention avoided committing itself as to any phase 
of the Continental debt. State debt, or Continental paper-money 
question. The credit of restoring the Nation’s credit bv funding, 
assuming, and paying the Continental and State debt, and the re- 


PUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 11 

sponsibility of the repudiation of the Continental paper money 
belongs to Alexander Hamilton, Washington, and the first three 
Congresses. 

What gave par value to the Continental debt, except the Conti¬ 
nental paper money Avhich was re])udiated. as well as to the State 
debts, was their assumption by act of Congress in 1790, and their 
funding between 1790 and 1791 after the adoption of the P^ederal 
Constitution. (Dewey. Financial History of the United States, 
89-90; xVlexander Hamilton, by W. G. Sumner, 114-101.) 

In every great and some small European nations patriotic men, 
women, and executors and trustees of estates invest their savings, as 
well as the ]3roceeds of the sales of undepreciated neutral securities in 
the war debt or neutrality debt of their respective nations, at less 
than the rate which such investment might bring in neutral countries. 
But for the foreign and domestic loans Ave negotiated, often at 
greatly depreciated rates, neither the American Revolution, the War 
of 1812, nor the Civil War could haA^e been successfully maintained. 
Xor could Great Britain have upheld the liberty of itself, its colonies, 
and its allies against the French Revolution and Napoleon from 
1793 to 1815 Avithout Avar loans at a then high interest rate. The 
holders or assignees of a Revolutionary War loan or any other 
national war loan are not unpatriotic because of its depreciation; 
on the contrary, it is the patriots who invest in such loans. They 
are morally and equitably, as aa ell as legally, entitled to its payment 
in full when the ReA olution or other Avar succeeds and the nation 
Avith peace and independence has become prosperous beyond measure. 

In 1787 there Avere but three incorporated banks in the thirteen 
States, viz. Bank of North America in Philadelphia, first chartered 
by Congress in 1781; Bank of New York, organized in 1781 and 
chartered by NeAV York in 1791; and the Bank of Massachusetts, 
chartered in 1784. (Dewey, Financial History of the United States, 
98; 1 Sumner, History of Banking in United States, 12-20.) 

In 1787 there Avere no American trust companies or savings banks; 
there Avas no stock exchange in NeAv York (the first Capital) and 
but few American corporations Avhose stock Avas marketable. Land 
(generally unimproved) and mortgages thereon Avere the best 
American sIoav inA^estments. Commercial pa^Der and public se¬ 
curities were the best liquid or quick investments. 

Prof. Beard’s condemnation of citizens, either of the ten bankless 
States, or else of the three States Avhich had but one small bank 
apiece, as not “ disinterested,” because they iiiA^ested part of their 
saAungs in declining public securities (Beard, 151), is as unwar¬ 
ranted as treating as unAvorthy or unethical a savings bank or trustee 
who successfully invested beloAV par in per cent or 4 per cent New 
York City bonds or other gilt-edged 31 or 4 per cent bonds during 
a bond market depression. No European iuAxstor Avill be condemned 
by history as unpatriotic because he invested at market rates in the 
war debt"^ or neutrality debt of his nation during the present Avar 
or else later during the financial depression inevita])ly following 
the treaty of peace. 

Mr. Benson’s assertions that the Federal Constitution Avas or is 
“ our dishonest Constitution ”; that it Avas or is the Avork of Avhat 
“to-day would be called grafters” or of “a group of grafters” are 


12 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 


unwarranted. The cap which he puts on, as quoted in a previous 
paragraph, fits him well. To falsify historical facts, to villify the 
founders of the Republic, and to endeavor to destroy the funda¬ 
mental principle of American democracy well merits the epithets he 
applies to himself. The assurance to each individual that his person 
and the fruits of his honest labor will be protected by the courts 
against the assault of a temporary legislative majority is, as Mr. Taft 
well called it, “the ark of the covenant” for Americans. The 
Marxian Socialist doctrine of the economic interpretation of history, 
with the class struggle following in its train, is also unwarranted. 

III. THE TWO SYSTEMS OF ENFORCING THE FUNDAMENTAL LAW IN FED¬ 
ERATIONS ARE JUDICIAL REVIEW AND A FEDERAL COUNCIL WITH 
PLENARY OR ABSOLUTE POWER. 

The Australian, Canadian, Xew Zealand, South x\frican, and 
British Privy Council way of settling the inevitable conflicts between 
the legislation of the British Empire and that of the Kingdom of 
Ireland, the dominions. Commonwealth, union, colonies, and depend¬ 
encies of the British Empire, as well as of enforcing the constitu- 
tutional limitations in the nature of, though not technically called, a 
bill of rights, imposed upon all the legislatures of the British 
Empire, except the Imperial Parliament, by their respective charters 
or constitutions, appears in the many judicial decisions holding laws 
ultra vires throughout the British Empire. Under the name of 
ultra vires laws, when invalid, and intra vires laws when valid, the 
privy council, Dominion, Commonwealth, Union, and colonial courts 
refuse to execute what we would call unconstitutional laws quite as 
freely as does our Federal court of last resort. 

The German way of settling such conflicts, except in a limited class 
of conflicts betAveen imperial and State laAvs, is by the federal council, 
which, when supported by the Kaiser, has absolute and plenary 
power. (James, Federal Constitution of Germany, arts. 2 and 76.) 

The German Federal Council Avas created during the Avar of 1870, 
following four years of absolutism in Prussia, three foreign wars, 
and seA^en years of blood and iron, Avhereby Prince Bismarck first 
gave the Prusssian Kingdom the primacy of Germany, and later 
founded the German Empire. The blood and iron inception and 
absolutist and AA^arlike tendency of Bismarck’s creation are frankly 
aA^oAved in his autobiography, as Avell as in his talks Avith his chief 
press agent and intimate friend, Herr Busch. 

IA\ AUSTRALIAN AND PRIVY (OUNCTL DECISIONS HOLDING AUSTRALIAN 
COMMONAVEAIHTI AND STATE LAAA'S ULTRA AIRES, PUBLISHED SINCE OR 
OTHERAAHSE, NOT CONTAINED IN A'^OUR COAIAIITTEE’s FIRST REPORT. 

1891. In MacLeod v. Attorney General for New South Wales 
Cases, 1891, 455, 458, 459) a Xew South IVales act prohibit¬ 
ing bigamous marriages Avas held ultra vires as to marriages solem¬ 
nized in the United States. 

1912. In Rex v. Smithers (16 CommonAvealth L. R., 100, 108-111, 
held tluit a XeAv South Wales hiAA^ excluding unde- 
siiable citizens (Australian natiAe-born conAucts) AA’as ultra A’ires. 


DUTY OP COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 13 

r. Attorney General for the Commonwealth of Australia v. 

Colonial Sugar Kefining Co. (IT Commonwealth L. K.. ()41. 648, 651, 
6o4-Go6) the privy council held that a Commonwealth law purport¬ 
ing to authorize a Commonwealth royal commission to compel an- 
SAvers generally in relation to the intrastate sugar industry, or to 
order the production of documents in relation thereto. Avas ultra vires 
because Avithin the sphere of the States. 

1914.^In Waterhouse Deputy Federal Commissioner of the Land 
Tax (IT CommonAvealth L. K.. 665, 6T0, 6T1, 6T2-6T9) it Avas held 
that a CommonAvealth land tax assessment act declaring husband and 
Avife to be joint oAvners for the purpose of taxation of land trans¬ 
ferred by either in trust for the benefit of the other aatis ultra Aures 
because taxing one person upon the property of another person. 

1914. In theJTramways case (18 CommonAvealth L. E.. 54, 58, 65- 
6T, 81-83, 85-8T) it Avas held that so much of a CommonAvealth act as 
purported to take away from the high court the poAver to issue pro¬ 
hibition in respect of an aAvard or order of the CommonAvealth court 
of conciliation and arbitration Avas ultra Aures. 


V. PRIVY COUNCIL DECISIONS HOLDING LAAVS ULTRA VIRES. PUBLISHED 

SINCE OR OTHERAVISE NOT CONTAINED IN YOUR COMAIITTEE’s FIRST 

REPORT. 

1884. In Attorney General for Quebec v. Eeed (10 xVppeal Cases, 
141, 143-146) a Province of Quebec act imposing a duty of 10 cents 
upon every exhibit filed in court was held ultra vires because it Avas 
an indirect tax, Avhich only the Dominion could impose. 

1885. In GoA^ernor General Dominion v. The Four ProAunces 
(Wheeler, Confederation LaAV of Canada, 144, 15T, 158) a Dominion 
temperance law was held ultra vires. 

1913. In Attorney General for the CommonAvealth of Australia v. 
Colonial Sugar Kefining Co. (Appeal Cases, 1914, 23T, 248, 252, 
254-25T) a Commonwealth of Australia act purporting to authorize 
a CommonAvealth royal commission to compel ansAvers generally to 
questions in relation to the intrastate sugar industry, also to order the 
production of documents in relation thereto, was held ultra Aures of 
the CommonAvealth as invading the ^ihere of the States. 

1913. In Cotton Kex (Appeal Cases, 1914, 1T6, 189-191, 195) a 
Province of Quebec succession duties act Avas held ultra vires of the 
Province because it imposed an indirect tax, Avhich only the Dominion 
could impose. 

1914. In John Deere PIoav Co. r. Wharton (Appeal Cases, 1915, 
330, 33T-343) it was held that a British Columbia act requiring in 
effect that companies incorporated by the Dominion Parliament shall 
be licensed or registered under the provincial act as a condition of 
carrying on business in the Province or maintaining proceedings in 
its courts, Avas ultra vires. 

1914. In Attorney General for Alberta v. xVttorney General for 
Canada (Appeal Cases, 1915, 363, 368-3T0) it Avas'held that an 
Alberta provincial act authorizing a provincial raihvay company to 
take and use the lands of a Dominion raiLvay company in order to 
cross the Dominion raihvay’s line Avas ultra vires. 


14 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 


1774. In Campbell t;. Hall (1 Cowper, 204, 209-214) the King’s 
legislative proclamation which purported to levy duties upon exports 
from the island of Grenada was held ultra vires. 

1835. In Cameron v. Kyte (3 Knapp, Privy Council, 332, 339-347) 
a legislative proclamation of the governor of the colony of Berbice 
reducing the vendue master’s commission on the sale of estates from 
5 per cent to IJ per cent on the gross amount of the biddings was 
held ultra vires. 

For generations the privy council held that the colonial legisla¬ 
tures had the same inherent power to punish summarily for contempt 
that the high court of parliament has. (1836, Beaumont 7 ;. Barrett, 
1 Moore P. C., 59, 76-81.) 

In 1842 it denied this power to the Newfoundland House of As¬ 
sembly (Kielley v. Carson, 4 Moore P. C., 63, 84, 90-92) ; in 1858 it 
denied it to the Legislative Council of Van Dieman’s Land (Fenton 
'V. Hampton, 11 Moore P. C., 347, 396-397), and in 1866 it denied 
it to the Legislative Assembly of Dominica. (Doyle v. Falconer, 
L. K., 1 Privy Council, 329, 338-342.) 

VI. NEW ZEALAND ULTRA VIRES DECISIONS. 

1914. In Broad v. Bex (33 New Zealand Rep., 1275, 1281-1286) a 
railway by-law prohibiting any vehicle or animal being driven over a 
railway crossing where a railroad crossed a public road, otherwise 
than at a walking pace was held ultra vires. 

SOUTH AFRICA ULTRA VIRES DECISIONS. 

1914. In Union Government v. Hill (South African L. R., 1914, 
Appellate Division, 195, 200, 201) a regulation of the minister of 
agriculture prescribing the methods, periods, and times for disin¬ 
fecting sheep or goats by dipping them in a tank was held ultra 
vires. 

1913. In Adendorp Municipality v. Meyers (South African L. R., 
1913, Cape Provincial Division, 103, 106, 107) a municipal by-law 
authorizing the municipality to demolish dilapidated buildings was 
held ultra vires. 

1913. In Oudtshoorn Municipality North (South African L. R., 
1913, Cape Provincial Division, 468, 472-^75) a municipal by-law 
imposing charges in respect to additional removals of slop water was 
held ultra vires. 

^II. THE GER'MAN FEDERAL COUNCIL WITH PLENARY OR ABSOLUTE POWER. 


Irom 1862 to 1866 von Bismarck as prime minister and Amn Roon 
as minister of war governed Prussia despotically, enlarged the army, 
and collected the revenue against the will and without the consent 
of Parliament, and waged two aggressive foreign wars. After the 
defeat of Austria and the South German States in 1866, the Prussian 
1 aril ament granted an indemnitv for Von Bismarck and his asso¬ 
ciate ministers’ unconstitutional acts. (V Von Sybel Founding of 
the German Empire, 487-490.) By seven years of what Bismarck 
describes as his policy of ‘‘blood and iron” and three foreign wars, 


DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 15 


all of which he admits that he brought al)out, in 1866 h© gave 
Prussia the primacy of (Termany, and in 1871, during the war with 
1 ranee, he founded the (lerman Empire and gave Germany the 
primacy of Europe. In his autobiography he frankly admits that 
judicial action Avas the one and only thing that he and the King 
feared; that in 1862 Avhen he Avas first appointed prime minister, the 
King of Prussia contemplated abdicating; that in 1866 and again 
in July, 1870, Bismarck contemplated resigning his office of prime 
minister; and in August, 1866, he contemplated throAving himself out 
of a AA'indoAA', but AA^as dissuaded from so doing by the croAAm prince 
of Prussia, later the Kaiser Frederick. 

I Bismarck, The Man and the Statesman, says (p. 312) : 

Only the clifFicnlties which in 1802 had brought the King to resolve on abdica¬ 
tion, that were able so far to intliience his mind and sound judgment as to help 
his monarchical views of 1859 across the bridge of the Danish question, to 
the point of view of 1866—i. e., from speaking to doing, from phrase to action. 

And further (p. 313) : 

Prussia * * * could no longer wear unaided on its long, narrow figure 

the panoply which Germany required for its security; it must be equally dis¬ 
tributed over all German peoples. 

We should get no nearer the goal by speeches, associations, decisions of 
majorities; we should lie unable to avoid a serious contest, a contest which could 
only be settled by blood and iron. In order to secure our success in this, the 
deputies must place the greatest possible weight of blood and iron in the hands 
of the King of Prussia, in order that, according to his judgment, he might 
1:hrow" it into one scale or the other. 

And further (p. 314) : 

When I begged [the King of Prussia] for permission to narrate the events 
which had occurred during his absence, he interrupted me with the \vords: 
“ I can perfectly well see whei'e all this will end. Over there in front of the 
opera house, under my windows, they will cut off your bead, and mine a little 
while afterwards.” 

And further (pp. 314, 315) ; 

“ Your majesty must not think of Louis XVI; he lived and died in a condition 
of mental weakness, and does not present a heroic figure in history. Charles I, 
on the other hand, will always remain a noble historical character, for, after 
drawing his SAAmrd for his rights and losing the battle, he did not hesitate to 
confirm his royal intent with his blood. Your majesty is bound to fight; you 
can not capitulate; you must, even at the risk of bodily danger, go forth to 
meet any attempt at coercion.” 

And further (pp. 315, 316) : 

This set him on a course of thought which was quite familiar to him; and in 
a feAv minutes he Avas restored to the confidence which he had lost at Baden, 
and even recoATred his cheerfulness. To gi\"e up his life for King and father- 
land Avas the duty of an officer; still more that of a King, as the first officer in 
the land. As soon as he regarded his position from the point of view of military 
honor, it had no more terror for him than the command to defend what might 
prove a desperate position would lijive for any ordinary Prussian oillcer. 

And further (pp. 316, 317) : 

Our situation was still sufficiently serious. Some progressive journals hoped 
to see me picking oakum for the benefit of the State; and on February 17, 1863, 
the House of Deputies declared, by 274 to 45, that the ministers were responsible 
with their persons and fortunes for unconstitutional expenditure. It Avas 
suggested to me that for the sake of securing my estate I should make it over 
to my brother. But the cession of my property to my brother in order to avoid 
its confiscation, which might not have been impossible on a change of sovereign. 


16 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 


would have uiveu an iniin’ession of alarm and anxiety about money matters 
wliieli were I'epugnant to me. FJesides this, my seat in the upper hou.se was 
rdtached to Kneiphof. 

And further (pp. 631, 332) : 

Itoon, however, was the only one of my later colleaunes who at my entrance 
upon office knew of its intended consecpiences and the common plan of opera¬ 
tions, and discussed the latter with me. He was uneciualed in the loyalty, 
staunchness, and resourcefulness with which, before and after my accession, to 
power, he ludped to surmountThe crisis in which the State had been involved by 
the “ new era experiment. 

After Sadowa, when the victorious Prussian generals demanded 
severe terms of ])eace for the vanquished, Bismarck says (Bismarck, 
The ^lan and Statesman, Vol. II, pp. 52, 53) : 

The resistance which 1 was obliged, in accordance with my conviction, to 
(•ffer to the King's views with regard to following up the military successes, 
and to his inclination to continue the victorious advance, excited him to such a 
degree that a imolongation of the discussion became impossible; and, under 
the imp]’essien that my opinion was i-ejected, I left the room with the idea of 
begging the King to allow me, in my capacity of t)fficer. to join my regiment. 
On returning to my room I was in the mood that the thought occurred to me 
whether it would not be better to fall out of the open window, which Avas 
four .stories high; and I did not look around when I heard the door open, 
although I suspected that the person entering was the crown prince, whose 
room in the same corridor I had just passed. I felt his hand on my shoulder, 
whilst he said: “You know that I was against this war. You considered it 
necessary, and the responsibility for it lies on you. If you are now persuaded 
that our end is attained and peace must now be concluded, I am ready to 
support you and defend your opinion with my father.” He then repaired to 
the King and came back after a short half hour, in the .same calm, friendly 
mood, but with the words: ” It has been a very difficult business, but my 
father hr.s consented.” 

And further (Vol. II, p. 77) : 

I do not consider absolutism by any means a form of government that is 
desirable or successful in Germany in the long run. ^ * xhe absolutism 

of the ('rown is just as little tenable as the absolutism of parliamentary ma¬ 
jorities ; the necessity for the agreement of both in every alteration of the legal 
status quo is just, and we did not need to make any important improvement 
in the Prussian constitution. Government can be carried on with it, and the 
course of German policy would have been littered up if we had altered it in 
1866. Before the victory I would never have mentioned the word “indemnity ”; 
but after the victory the King was in a position to make the concession mag¬ 
nanimously, and to conclude peace, not with his people—for it was never inter¬ 
rupted, as the course of the war showed—but with the section of the ojjposition 
wTiicli had gone out of harmony with the Government, more from national 
than from party grounds. * * * 

And further (Vol. II, pp. 77, 78) : 

On August 4 I tried to combat the difficulties wTiich his own views, but still 
more external influences, and especially the intUuaice of the conservative depu¬ 
tation, had left on the King s mind. To this was added a view of itolitical 
affairs which made His IMajesty regard a request for a bill of indemnity as an 
admission of a wrong committed. * * * In all constitutional life, in the 

scojie it allows To governments, it is a necessary condition that they can 
not alv a,^ s tin*! indicated in the constitution a compulsory course for every 
situation. 


And further (Vol. II, p. 75.)) : 

At last, however, the King reluctantly assented to that also (a bill of indem- 
int;\ ). and tniis it was possible to o]>en the Diet on August 5 with a speech 
ITom the tin one wdiich announced that the representatives of the country Avere 
to pioceed to an ex post facto approval of the administration carried on wdth- 
out an appropriation act. 


DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 17 


Iiiiiiiecliatelv before tbe deletion by Bismarck of certain Avords 
from the Ems telegram, the publication of Avhich in the deleted form 
1 ranee regarded as the basis for a declaration of Avar, Bismarck savs 
(Vol. II, pp. 9b, 97) : 

llaA'iiij; (leci(lc<l to rcsijjii, in spite of tlie reinoiistiMiices which Ivoon made 
against it, I invited him and Aloitke to dine with me alone on the loth, and 
commnnicated to them at table my views and projects for doing so. Both were 
greatly depressed, and reproached me indirectly with seltishly availing myself 
of my greater facility for withdraAving from service. 

And further (Vol. II, p. 101) : 

After I had read out the concentrated edition to niA’ two guests. Aloltke re¬ 
marked ; “ Xow it has a dift'erent ring; it sonnde<l before like a parley; no\A' it 
is like a tlonrish in answer to a challenge.'’ I AA’ent on to explain ; * * * 

“ It AA’ill be known in Paris l)ef()re midnight, and not only on account of its con¬ 
tents, bnt also on account of the manner of its distribution, will have the effect 
of a red rag upon the (lallic bull. Fight we must if aa'o do not want to act the 
part of the vanquished without a battle. Success, however, essentially depends 
upon the impression which the origination of the Avar makes upon us and others; 
it is important that Ave should be the ones attacked.'’ * * * 


Herr Moritz Busch, in II Bismarck, Some Secret Pages of his His¬ 
tory, says Prince Bismarck' told liiin (Vol. H, pp. 104, 165) : 

Thus on Sunday, the 21st of October [1877J Avhile seated in the position I 
have already described, and after gazing for a Avhile into space, he complained 
to us that he had had little pleasure or satisfaction from his political life. He 
had made no one happy thereby, neither himself, nor his family, nor others. 
We protested, but he continued as follcoA’s; 

“ There is no doubt, hoAvever, that I have caused unhappiness to great num¬ 
bers. Rut for me three great Avars aa^ohUI not have taken ])lace, S0,(X)0 men 
AAmuld not have been killed and AAUAuld not noAV be mourned by parents, brothers, 
sisters, and AvidoAvs.'’ “And SAA’eethearts,” I added. someAvhat prosaically and 
inconsideratelA^ “ And SAveethearts,” he repeated. “ I have settled that Avith 
(iod, hoAvever. But I have had little if any pleasure from all that I have done, 
Avhile on the other hand I have had a great deal of Avorry, anxiety and trouble,” 
a theme upon Avhich he theu dAvelt at some length. 

AA'e kept silent, and I Avas greatly surprised. I afterAvards heard from Hol¬ 
stein and Bucher that during the last feAV years he frequently expressed him¬ 
self in a similar strain. 

II Bismarck, the Man and the Statesman (p. 298) : 

During the time that I Avas in office 1 advised three Avars, the Danish, the 
Bohemian, and the French ; but e\’ery time I have tirst made <‘lear to my.self 
AA’hether the AA^ar, if it Avere successful, AA’Ould bring a i»rize of victory Avorth the 
sacrifices Avhich every AA’ar requires, and Avhich iioaa" are so much greater than 
in the last century. 

One of Senator La Follette’s ablest lieutenants. Dr. Frederic C. 
HoAA'e, in his book, IVisconsin an Experiment in Democracy, says 
(preface, p. Aii) : 


Wisconsin is doing for America Avhat Germany is doing for the Avorld. 

Details of the German State socialism, as imitated in Wisconsin, 
are set forth at pages xi-xii, 38, 89, 49, ()8, 118, 114, 117, 118, 181, 132, 


140, 141. 

Dr. HoAA^e further says (p. 187) : 


Xo constructiA’e program can l)e developed in the midst of a class contiict. 
It can be achieved by a beneAmlent autocrat, as in Germany, or it can be achieved 
by democracy. There is no place for State building in the midst of a struggle 
IjetAveeii privilege and democracy. 

Some of the advocates of a benevolent autocrat to institute a con¬ 
structive program of State socialism overlook the fact that very much 


S. Doc. 454, 04-1 



18 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 

of the wonderful discipline, cooperation, industry, and efficiency of 
the German peasants, mechanics, and wage earners is the result not 
of autocracy or State socialism, but of the discipline and training 
produced by general military service in the German Army. 

The Gerinan Empire by reason of its efficient organization, spe¬ 
cialized and class education and discipline, all under the skilled direc¬ 
tion of an autocracy, with nearly every German peasant and most 
German wage earners educated by service in the German Army or 
Navy (as it is thought by many) to greater trade,^ business, and com¬ 
mercial efficiency than our high schools educate their average grad¬ 
uate, is probably the most efficient Government in the world. 1 et the 
Anglo-Saxon ‘‘theory of our Governments, State and National, is 
opposed to the deposit of unlimited power anywhere ” (Loan Asso¬ 
ciation V Topeka, 20 Wall., 663), and it wisely sacrifices autocratic 
and militaristic efficiency in order to conserve our still more valuable 
birthright of individual liberty and personal freedom. In the long 
run individual liberty and personal freedom conserves the greatest 
good of the greatest number much more than autocracy, no matter 
how efficient it may be, can do. Of this the present bloody war in 
Europe is a notable example. 

Your committee’s first report (approved by the association at the 
January, 1915, annual meeting) was sent to the socialistic and usurpa- 
tionist leaders of thought and action, also to the editors of the leading 
magazines and periodicals which in 1911 and 1912 asserted that 
judicial review was a judicial usurpation. No answer to our report 
has yet been received or read by your committee from any of them, 
but your committee is not advised and finds no evidence that the 
socialists and usurpationists intend to abandon the charge of judicial 
usurpation contained in the Socialist platform of 1912. They proba¬ 
bly will reassert it diirino- the campaign of 1916. 

In the summer of 1914 a number of Socialists and usurpationists 
advised members of your committee that they would answer any re¬ 
port not in accord with their views. So far as your committee is 
advised, however, none of them have yet done so. Since January, 
1915, a few newspaper articles inferentially (and one directly) 
asserting usurpation as an established fact, but not attempting to 
prove it, are all we can find. 

Your committee’s first report was sent to the leaders of thought 
and action, as well as to the editors of many of the leading maga¬ 
zines and periodicals advocating the view of Mr. Holder, of South 
Australia, that the constitutional decisions of every State court should 
be subject to review by a plebiscite of the voters of such State, not¬ 
withstanding the Federal Constitution, and particularly the four¬ 
teenth and fifteenth amendments thereof. No answer to the report 
has been received or read by your committee from any of the recall 
propagandists. The Avestern agitation for the recall of decisions still 
continues with an aggressive ]:>ropaganda behind it. 

In August, 1915, there was signed, and on September 28, 1915, your 
committee received the printed final report of the (Federal) Com¬ 
mission on Industrial Relations. The portion of the minority report 
of Chairman Frank P. Walsh and Commissioners Garretson Len¬ 
non, and O’Connell relating to judicial review is printed as Exhibit 
A, and is hereto annexed. 


DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 19 

Questionnaires (in form annexed) were sent to Allan L. Benson, 
Gustavus Myers, Prof, Beard, also to several radical propagandists of 
usurpationist or benevolent autocratic views. Some curious answers 
thereto, showing the difference in tone of these propagandists be¬ 
tween 1912 and 1915, are annexed and marked “ Exhibits B, C, 
and D.” 

VIII. NEW NATIONAEISM AND JUDICIAL REVIEW OF LAWS. 

New nationalism’s attitude toward judicial review of the validity 
of laws in a federation is merely one of destructive criticism; it 
suggests no other practical way of settling conflicts between funda¬ 
mental laAv and statute law. It regards judicial review of laws either 
as an assumed power which sprang full armed from the brain 
of Chief Justice Marshall (Theodore Roosevelt, Nationalism and 
the judiciary,” Outlook, Mar. 4, 1911. pp. 490, 491), or else as a 
unique and archaic local Americanism. (Theodore Roosevelt. 
“Judges and progress,” Outlook, Jan. G, 1912. p. 41: “Criticism 
of the courts,” Outlook, Sei)t. 24, 1910, p. 149.) It denies the demo¬ 
cratic-republican idea of Thomas Jefferson and his associates that 
the right of the individual to life, liberty, and pursuit of happiness 
is sacred. This conception was incorporated into the Federal Con¬ 
stitution by the first ten amendments thereto. This new nationalism 
denies the view of Washington, Hamilton, and their school, that 
the individual citizen should be protected in the enjoyment both of 
life and property from the despotic power of a temporary legislative 
majority. Such protection was incorporated by a later generation 
into the fourteenth amendment to the Federal Constitution. Boldly, 
directly, and frankly does new nationalism attack the fourteenth 
amendment (Theodore Roosevelt, “ The right of the people to rule,” 
Outlook, Mar. 23, 1912, pp. G19, ()20, 623-G25), as well as the theory 
of the Jeffersonians and Federalists as to Avhat constituted liberty 
and free government. (Theodore Roosevelt, The New Nationalism, 
pp. 40-42; “ Judges and progress,” Outlook, Jan. 6. 1912, pp. 43-45; 
“ The right of the people to rule,” Outlook Mar. 23, 1912, pp. 620- 
625; “ Criticism of the courts,” Outlook, Sept. 24, 1910, pp. 150-152.) 

The great rival of this American principle has been and is the 
German imperial autocracy, enforced by a Federal council with 
plenary power, tempered with State socialism, and stiffened by 
general military or naval service in the German Army or Navy, that 
has prevailed in Germany since 1871. 

While many advocates of new nationalism approve German au¬ 
tocracy, your committee can not find any who even mention the 
German Federal council with its plenary, autocratic, and dictatorial 
powers. Advocates of new nationalism sometimes urge State 
plebiscites on State court constitutional decisions. fTheodore Roose¬ 
velt, “A charter of democracy,” Outlook. Feb. 24. 1912, pp. 398- 
401; “Judges and progress,” Outlook, Jan. 6. 1912. pp. 45-48.) In 
so doing they ignore the fourteenth amendment to the Federal 
Constitution,‘as well as the bill of rights in the original Federal 
Constitution, and the duty of the Federal courts to enforce both. 
They also ignore the fact that their nostrum is copied from a scheme 
for Xlommonwealth plebiscites upon Commonwealth constitutional 
decisions proposed in the Australasian Federal convention of 1898, 
wliich was AvithdraAvn because its proposer could find no seconder. 


20 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 


Their attacks upon the due process of law clause of the fourteenth 
amendment, as well as their demands for its repeal (Dean H. W. 
Ballentine, Labor Legislation and the Kecall of the Judicial Veto, 
19 Case and Comment, 225-230), ignore the facts that the Federal 
Supreme Court (Guinn v. United States, 238 V. S., 347, 363, point 
raised in J. H. Adriaans amicus ciiriie brief) refused to abrogate the 
fourteenth amendment, and that in 1911 the electors of Australia 
defeated a proposed constitutional amendment to give the Common¬ 
wealth parliament plenary power to pass laws in relation to labor, 
employment, wages, and conditions of labor. 

Xew naticPnalists who assert that the Jeffersonian theory that the 
best republican government was the one which governed the least, 
as well as the laissez faire theory of Hamilton, Washington, and the 
Plnglish, American, and French political economists from Adam 
Smith to Herbert Spencer, has been outgrown, have the burden of 
proving their assertions favoring German autocracy, state socialism, 
or a plebiscitary consolidated democracy. So far as this Federal 
democratic Kepublic is concerned they have wholly failed to prove 
their charges. Epithets adjectives, and denunciations of our con¬ 
stitutional system that has since 1787 brought the greatest good to the 
greatest number of any constitutional system yet known, are not 
proof. More efficiency we do need; autocracy we abhor. 

IX. CONCLUSION. 


Our ancestors did not fight eight years to defeat unconstitutional 
parliamentary absolutism because the British Parliament had no 
constitutional right to tax the colonies 3 pence a pound upon tea, 
only to create in lieu thereof a consolidated congressional absolutism, 
plus fortj^-eight State legislative absolutisms, without any Federal 
council as in the German Empire, to either settle the inevitable con¬ 
flicts between State and Federal jurisdiction, or to enforce the bill 
of rights incorporated in the Federal Constitution and in its first 
ten amendments as limitations upon Congress and the Federal Gov¬ 
ernment, or to enforce the further bill of rights incorporated in 
the Federal Constitution and in its thirteenth, fourteenth, and fif¬ 
teenth amendments as limitations upon the State legislatures and 
State governments. 

Even in Australia the socialist and labor parties’ proposal to 
amend the constitution of Australia by conferring upon the Com¬ 
monwealth parliament plenary and absolute power to make laws with 
respect to labor and employment, including the wages and condi¬ 
tions of labor and employment in any trade, industry, or calling 
(Commonwealth Acts, Australia, vol. 9, 1910, pp. li7-118), was 
disapproved by the electors of Australia on a referendum vote on 
April 26, 1911. (Commonwealth Acts, 1901-1911, indexes, vol. 2, 
p. 951.) 

This committee therefore respectfully presents the following reso¬ 
lutions. 


Henry A. Forster. 
Everett P. Wheeler. 
Charles H. Beckett. 
Frederick D. Colson. 
Everett V. Abbot. 


November 6, 1915. 


DUT\ OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 21 


pnforpinp- tiio Supi-enie Court (»f the United States in 

stit^lfi^nnli^-^• lias usurped the power to pass upon the con- 

Wf-Pr‘ino f] l<"gislatioii enacted l)y Congress, is contrary to both the 

pf incV 1 Federal Constitution; is unwarranted by the history 

1 the history of federations possessing a writtten 

nofoiMii-, If-'V without any Federal council with plenary powers to 
(leteimine conflicts between the fundamental law and ordinary statutes, and it 
1 . ^'^^^^trap' to the spirit of our Federal democratic Kepublic with forty-nine 

legislative units (one federation and forty-eight States). 

hesohed further. That the theory of our (Governments, State and National, 
IS opposed to tlie deposit of unlimited iiower anywhere. 

I heiTbv certify that the two foregoing' resoluticTis were duly 
adopted by the Xew \ork State Bar Association at its thirty-ninth 
annual meeting on January 15, 1916. 

Fhederiok E. AVappia:ms, 

Secretary. 


Exhibit A. 


Extract from minority report of Chairman Frank P. Walsh and 
Commissioners Garretson, Lennon, and O’Connell of the Commission 
on Industrial Relations (report, p. 252), relative to judicial review 
and legislative autocracy -without a Federal council to reconcile con¬ 
flicts between our forty-nine legislative units or to enforce the bill 
of rights: 

Second, it is charged by the workers that after wholesome and necessary 
laws are passed they are in large part nullified by the courts * * * op 

thrown out on the broad ground of unconstitutionality, through strained or 
illogical con.struction of constitutional provisions. It is argued that such action 
is doubly evil because the power to declare legislative acts unconstitutional 
has been assumed by the courts in the face of a complete absence of legal sanc¬ 
tion, in complete disregard of early decisions denying the possession of such 
power, and in complete contrast to the practices of the courts in every other 
country of the civilized worid. It is not within our i)rovince to decide whether 
or not this assumption of power by the courts was justified. (Report, pp. 44, 45.) 

RECOMMENDATIONS OF 3I1NORITY OF C03I MISSION ON INDUSTRIAL 

REI>ATIONS. 


Relief from these grave evils can not be secured by petty reforms. The action 
must ))e drastic and directed at the roots from which these evils .spring. 

With full recognition of the gravity of the suggestions, it seems necessary 
to urge the commission to make the following recommendatiens; 

1, That Congre.ss forthwith initiate an amendment to the Constitution pro¬ 
viding in specific terms for the protection of the per.sonal rights of every per¬ 
son in the United States from encroachment by the Federal and State Gov¬ 
ernments and by private individuals, associates, and corporations. The prin¬ 
cipal rights which should be tlius specifically protected by the power of the 
Federal Government are the privilege of the writ of habeas corpus, the right 
to jury trial, to free .speech, to peaceful a.ssemblage, to keep and bear arms, to 
be free from’ unreasonable searches and seizures, to speedy public trial, and to 
freedom from excessive bail and from cruel and unusual punishments. 

2 That Congress immediately enact a statute or, if deemed necessary, initiate 
a constitutional amendment, specifically prohilfiting the courts from declaidng 
legislative acts unconstitutional. (Repoit, pp. <8, T9.) 



22 DUTY OF COUETS TO EFFUSE TO EXECUTE STATUTES^ ETC. 

Exhibit B. 

Questionnaire to the upholders of the High Tory theory of the 
American Kevolution. 

Keferring to— 

Outlook, March 4, 1911, page 491. 

Outlook, May 27, 1911, pages 143, 144. 

La Follette’s Weekly Magazine, June 3 to September 16, 1911, both 
inclusive, which publishes or commends Gilbert E. Koe’s Our Judi¬ 
cial Oligarchy; Allan L. Benson’s The Usurped Power of the Courts; 
Robert L. Owen’s July 31, 1911, speech. 

Outlook, January 6, 1912, page 41. 

Outlook, March 23, 1912, pages 617-626. 

Introduction by T. Roosevelt to William L. Ransom's Majority 
Rule and the Judiciary, pages 10-12. 

Introduction by Robert M. La Follette to Gilbert E. Roe’s Our 
Judicial Oligarchy, pages vi, vii. 

Dr. Frederic C. Howe, Wisconsin an Experiment in Democracy, 
preface, page 7; text, page 187. 

Also to Allan L. Benson’s Our Dishonest Constitution; Gustavus 
Myers’s History of the Supreme Court of the United States. 


Dear Sir: The New York State Bar Association committee upon 
the duty of courts to refuse to execute stiitutes in contravention of 
the fundamental law, of which I am a member, is trying to ascertain 
the genesis of the origin of the situation dealt with in the above-cited 
articles, as well as in its report. (S. Doc. No. 941, 63d Cong., 3d 
sess.) 

There are three different and inconsistent angles or points of view 
upon which the views advocated by so many during the campaign 
of 1912, and also both before and since 1912, to give the legislatures 
of each of our forty-nine legislative units (one federation and 48 
States) either plenary legislative power, or else dictatorial power 
equal to that exercised by the German Fecleral council and the Kaiser 
in time of war or other emergency, without providing for any Federal 
council to reconcile conflicts between different legislative units or to 
enforce the Bill of Rights, are historically or philosophically 
grounded. 

1 . That the courts here in exercising the power of judicial review 
have either usurped such power or else the exercise of the power of 
judicial review is unique and obsolete in the twentieth century. 

2 . That the German Federal council, which with the Kaiser ex¬ 
ercises plenary or dictatorial power whenever they want to, has pro¬ 
duced a species of benevolent autocracy tempered with State social¬ 
ism, which some leaders of thought and action think may at least 
in part be desirable here. (See Outlook, May 27, 1911, pp. 143-145; 
La Follette’s Weekly Magazine, June 3,1911, to Sept. 16, 1911, which 
approved, among other things, Allan L. Benson’s The Usurped 
Power of the Courts; also particularly Dr. Frederic C. Howe, Wis¬ 
consin an Experiment in Democracy, from preface, p. 7, to and in¬ 
cluding text, p. 187.) 

3. Your work, the History of the Supreme Court of the United 
States, asserts, among other things, that the Supreme Court of the 



DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 23 


Inited States ‘‘usurped” or “arrogated” the “power of declaring 
laws void ’ (pp. 159, 160, 225-227, 262, 263), following the decisions 
of the colonial judges who “ assumed the right to void laws as much 
as they pleased” (p. 133), following in turn the precedents by Eng¬ 
lish jud^ges in reviewing laws ever since the time of Lord Coke ^pp. 
136, 137), “that the courts during the Revolution put themselves 
above law (pp. 157, 158); that “ the people of the ” thirteen “ Colo¬ 
nies had been thoroughly indoctrinated with the idea that the acts of 
Parliament of which they complained were unconstitutional, and 
therefore void, * * that it was the right and the duty of the 

courts to set aside these acts” (pp. 159, 160). 

Are there any historical facts or philosophical views which you 
desire to submit for the consideration of the State bar association 
committee showing: 

(1) Why the Federal and State courts in following an unbroken 
line of English and colonial decisions reviewing ultra vires or un¬ 
constitutional laws for more than three centuries, ever since the time 
of Lord Coke, were guilty of usurpation, assumption, or arrogation 
of judicial power? 

(2) Were the colonists wrong in successfully resisting the claim 
of parliamentary omnipotence to tax the colonies without represen¬ 
tation in the British Parliament? Was William Pitt wrong in 
opposing the stamp act on the ground that parliament had no right 
to lay a tax upon the colonies? Are the views of every modern 
English, Canadian, Australian, South African, New Zealand states¬ 
man that Parliament has no right to lay a tax on the Dominions, 
Commonwealths, Unions, or colonies of the British Empire, right or 
wrong ? 

(3) Who or what, except the courts of our Federal democratic 
Republic consisting of forty-eight States and one federation, could 
have solved the inevitable conflicts between the constitutions and 
legislation in each of such forty-nine legislative units, in the absence 
of any Federal council with plenary power to determine conflicts 
between States, between the federation and the States, and between 
the Constitution and the laws, as in the German Empire since 1871? 

(4) The expediency or inexpediency of adopting part or some of 
the principles and practices of German benevolent autocracy tem¬ 
pered with State socialism through the operation of a Federal coun¬ 
cil, which, when in accord Avith the President, would exercise (as 
does the German Federal council when in accord vdth the Kaiser) 


plenarv or dictatorial powers? 

(6) Whether or not the adoption of the Federal Constitution Avas 
the result of the Avork of Avhat to-day Avould be called a group of 
grafters (Allan L. Benson, Our Dishonest Constitution, 20, 21, 36, 

53 . 16 , 5 ) ? _ . . , . 

Any views you may care to favor us Avith on this subject will be 
submitted to the committee. 

Yours, truly, _ 

Henry A. f orster. 


Gustavus Myers (author and editor) writes: 

I liaA^e vour inquiries of ^lay 8. It is Avith no intention of dis¬ 
courtesy that I must ask to be relieved from replying to the ques- 



24 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 


tions. I am not a theoretical writer. I am simply a writer of his¬ 
torical documentary facts, and record them as I find them, be they 
^ood, bad, or indifferent. Such facts as I have been able to ascertain 
by much research are in my books, and whatever conclusions are to be 
drawn may be drawn from them. My books are those of facts, not 
my personal opinions. I have refrained from writing or thinking in 
terms of personal opinion, so as to confine myself as much as possible 
to facts; and to this policy I have increasingly determined to adhere, 
preferring now more than ever to keep out of the field of expressing 
personal opinion or venturing into the hazardous business of theoriz¬ 
ing. There are, I think, some strong conclusions to be drawn from 
the array of facts set forth in my History of the Supreme Court of 
the United States, but I Avould rather have others state the con¬ 
clusions. 

Sincerely, jmurs, 

Gustavus Myers. 


Exhibit C. 

Questionnaires to the upholders of the theoi-y that the franlers of 
the Federal Constitution Avere not disinterested. 

Referring to— 

Outlook, March 4, 1911, page 491. 

Outlook, May 27, 1911, pages 143, 144. 

La Follette’s Weekly Magazine, June 3 to September 16, 1911, 
both inclusiA^e, Avhich publishes or commends Gilbert F. Roe’s Our 
Judicial Oligarchy; Allan L. Benson’s The Usurped PoAver of the 
Courts; Robert L. Owen’s July 31, 1911, speech. 

Outlook, January 6, 1912, page 41. 

Outlook, March 23, 1912, pages 617-626. 

Introduction by T. Roosevelt to William L. Ransom’s Majority 
Rule and the Judiciary, pages 10-12. 

Introduction by Robert M. La Follette to Gilbert E. Roe’s Our 
Judicial Oligarchy, pages vi, vii. 

Dr. Frederic C. HoAve, Wisconsin an Experiment in Democracy, 
preface, page 7; text, page 187. 

Also to Allan L. Benson’s Our Dishonest (Constitution; GustaAuis 
]\lyers’s History of the Sujireme Court of the Ihiited States. 


Dear Sir: The XeAv ^ ork State Bar Association committee upon 
the duty of courts to refuse to execute statutes in contravention of 
the fundamental law, of Avhich I am a member, is tiwing to ascer¬ 
tain the genesis of the origin of the situation dealt Avitli in the above- 
cited articles as Avell as in its report. (S. Doc. 941, 63d Cong., 3d 
sess.) 

There are three different and inconsistent angles or points of vieAv 
U])on Avhich the vieAvs advocated by so many during the campaign 
of 1912, and also both before and since 1912, to giA^e the legislatures 
of each of our forty-nine legislative units (one federation and forty- 
eight States) either plenary legislative poAver or else dictatorial 
poAver equal to that exercised by the German Federal council and 




DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 25 

the Kaiser in time of war or other emergency, without providing 
for any P ederal council to reconcile conflicts between different legis¬ 
lative units or to enforce the hill of rights, are historically or philo¬ 
sophically grounded: 

1. That the courts here in exercising the power of judicial review 
have either usurped such power or else the exercise of the power of 
judicial review in unique and obsolete in the twentieth century, 
(lou and those of your Avay of thinking have fully advised the 
State bar association of your views on this point; all these letters 
were printed in full in our report aboA^e cited.) 

2. That the German Federal council, which with the Kaiser exer¬ 
cises plenary or dictatorial power Avhenever they want to, has pro¬ 
duced a species of benevolent autocracy tempered Avith State social¬ 
ism, which some leaders of thought and action think may at least in 
part be desirable here. (See Outlook, May 27, 1911, pp. 143-145; 
La P^ollette’s Weekly Magazine, June 3, 1911, to Sept. 10, 1911, AAdiich 
approved, among other things, Allan L. Benson’s The Usurped 
Power of the Courts; also particularly Dr. Frederic C. HoAve, Wis¬ 
consin an Experiment in Democracy, from preface, p. 7, to and in¬ 
cluding text p. 187.) 

3. Your latest Avork, Our Dishonest Constitution (as Avell as, per¬ 
haps indirectly, Gustavus Myers’s History of the Supreme Court of 
the United States), asserts in substance that the Federal Constitution 
was the work of what you say would to-day be called a group of 
grafters. (Our Dishonest Constitution, pp. 20, 21, 36, 53, 16, 5.) 
You and Gustavus Myers also lay much stress upon Avhat you, he, 
and others call an economic interpretation of the Constitution. 

Are there any historical facts or philosophical views which you de¬ 
sire to submit for the consideration of the State bar association com¬ 
mittee showing— 

(1) The expediency or inexpediency of adopting part or some of 
the principles and practices of German benevolent autocracy tem¬ 
pered with State socialism through the operation of a Federal coun¬ 
cil, Avhich, when in accord with the President, Avould exercise (as 
does the German Federal council when in accord Avith the Kaiser) 
plenary or dictatorial poAvers? 

(2) Whether or not the adoption of the Federal Constitution Avas 
the result of the work of Avhat to-day would be called a group of 
grafters. (Our Dishonest Constitution, 20, 21, 36, 53, 16, 5.) 

Any views you may care to favor us Avith on this subject will be 
submitted to the committee. 

Yours, truly, 

H. A. Forster. 


Allan L. Benson, author and editor, Avrites: 

Keplying to your letter of the 5th instant, I have to say that I 
am not in favor of substituting any sort of autocracy—German,” 
“benevolent,” or otherwise—for the present power of the United 
States Supreme Court to declare acts of Congress unconstitutional. 
If I am any judge of the facts, Avhat human Avelfare requires in such 
matters is not more autocracy of any sort but more democracy of 
every sort. If we are forever to be governed by autocrats, Avhat does 
it matter to us Avhether Ave call our autocrats justices of the United 



26 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 

States Supreme Court or some other official title? The adoption of 
the German plan, or any modification of it, would be merely to give 
our autocrats different official titles. 

The American theory is that all political power comes from the 
people and that such powers as public officials have are delegated to 
them by the people. I contend that no delegated power should ex¬ 
ist except upon the understanding that any acts performed under it 
may be disavowed by the people themselves, voting directly upon the 
questions at issue. I would therefore give Congress the power, with¬ 
out the consent of the President, to enact such legislation as it might 
please, subject to the power of the people to negative such legisla¬ 
tion by ballot. I have no notion that this would bring about perfect 
government, but I know of nothing that I believe would bring about 
perfect government. I do feel, however, that Congress is as well able 
as the Supreme Court to interpret the Constitution, and that Con¬ 
gress, with its closer relationship to the people, is usually better able 
to interpret the changing spirit of the times. As to my statement in 
Our Dishonest Constitution that many of the members of the con¬ 
vention that framed the Constitution were of the sort that to-day 
would be called grafters, I have to say only that in my book I gave 
my authority for such statements. The task of anyone who might 
desire to refute my statements would be, I presume, to refute my 
authorities, which, so far as I know, has not been done and, to the 
best of my knowledge and belief, can not be done. 

I should like to take exception, in closing, to your use of the words 
“ State socialism ” in connection with what you term “ German 
benevolent autocracy.” I am quite certain that you can not find a 
single Socialist authority in the world who will say there is a shadow 
of Socialistic principle in the placing of autocratic power in the 
hands of a sovereign and a legislative body. Such a distribution of 
political power is repugnant to every Socialist principle. 


My Dear Sir: I inclose copy of a questionnaire recently sent to 
prominent publicists who in the press of 1915 have advocated con¬ 
stitutional views in relation to giving our forty-nine legislative units 
(one federation and forty-eight States) plenary or absolute legis¬ 
lative power that seemed to me to be in part at least derived from 
their economic interpretation of the Constitution of the United 
States; also in part from the principles or practices of German 
benevolent autocracy. 

Any views you may care to favor us with on this subject will be 
submitted to the New York State Bar Association committee upon 
the duty of courts to refuse to execute statutes in contravention of 
the fundamental law, whose January report approved by the associa¬ 
tion, is Senate Document 941, Sixty-third Congress, third session. 

Yours, truly, 


Hexry a. Forster. 


Prof. Beard (author and professor of politics) writes: 

With reference to your questionnaire of May 4, I beg to say that I 
have set forth my views on the question of judicial “usurpation” in 




DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 27 

my little book on The Supreme Court and the Constitution, and I 
believe Uiat I have nothing further to add at the present time. 
Yours, sincerely, 

Charles A. Beard. 


May 14, 1915. 

Gentlemen : I inclose answer to a questionnaire from Mr. Allan 
L. Benson, copy of which questionnaire I inclose to Prof. Beard 
(having heretofore inclosed one to Prof. Farrand). 

Does not Allan L. Benson’s Our Dishonest Constitution, pages 
20-21, assert that jmu are his authorities for the statements made in 
his answer to the questionnaire relating to the alleged motive of 
many of the members of the Federal constitutional convention? If 
it does, does it not do you an injustice? 

Very truly, yours. 


Henry A. Forster. 


Prof. Beard writes: 

Replying to your letter relative to Mr. Benson’s use of my book, 
I beg to say, what I have already said to your committee on this 
point at least once or twice before, namely, that I have not read Mr. 
Benson’s book, that what I have said on the subject in controversy is 
in my book, that I can not undertake to give any attention at all 
to what use other people make of it, and that I stand on the facts 
there presented. 

Yours, faithfull}^ 

Charles A. Beard. 


September 12, 1915. 

Allan L. Benson, Esq. 

Dear Sir: In your work now published as a pamphlet under the 
title “ Our Dishonest Constitution ” you reached the view expressed 
in the above title to your work largely folloAving the view of Prof. 
Charles Austin Beard in An Economic Interpretation of the Con¬ 
stitution of the United States, that the members of the Federal con¬ 
vention were not “disinterested” (Beard, p. 151), because he says 
that by reason of the adoption of the Constitution they as holders of 
the public debt (to an amount which I can not find he has clearly 
stated, but Avhich I do not think he claims exceeded $750,000) partici¬ 
pated in the “ at least $40,000,000 gain ” that he says “ came to the 
holders of securities through the adoption of the Constitution and the 
sound financial system which it made possible” (Beard, p. 35). 

In your chapter headed “Washin^on and his group” you say 
(p. 53) “ that the sacred document was drawn up in part by a group 
of grafters.” 

In order that the committee may ascertain the truth and the whole 
truth so that it can make a full, true, and fair report to the State 
bar association, may I ask you: 

1. Are you aware of the fact that the refusal of the Federal Con¬ 
stitutional Convention to assume any of the State debts, to assume 
or pay any of the Continental or State paper money (which paper 
money was wholly repudiated), also its refusal to change or improve 
the status of the Continental debt, was the cause of much factional 





28 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 

opposition among the influential holders of the repudiated Conti¬ 
nental and State paper money as well as of the State debts to the 
adoption of the Federal Constitution (Prof. Max Farrand, Framing 
of the Constitution, 141, 142) ? 

2. Are you aware of the fact that what gave value to the Continental 
public debt, as well as to the State debts (not including the wholly 
repudiated Continental and State paper money), was their assump¬ 
tion by act of Congress in 1790 and their funding between 1790 and 
1794, years after the adoption of the Federal Constitution, also that 
this assumption of State debts was part of the congressional bargain 
whereby the Northern States secured the national assumption of 
their relatively heavier debts and the Southern States secured the 
location of the Federal Capital in territory set off from Maryland 
and Virginia (Dewey, Financial History of the United States, 89-96; 
Alexander Hamilton, by W. G. Sumner, 144-161) ? 

Very truly, yours, 

Henry A. Forster. 


Allan L. Benson writes: 

I have your letter of September 12 in which you quote a part of a 
sentence from a book of mine, entitled “ Our Dishonest Constitu¬ 
tion.” The fragment of a sentence, the truth of which you question, 
is, “ * * that the sacred document was drawn up in part by a 

group of grafters.” 

What do you think about Jonathan Dayton? If he wasn’t a 
grafter, what was he? I do not recite his history here, because it is 
somewhat long, and I assume that you are familiar with it. 

And William Blount, of North Carolina? Was he a grafter, or 
was he not? He was a land speculator. Almost everybody knows 
what eighteenth-century land speculators were. He certainly was 
not disinterested. He was later denounced by President Adams and 
expelled from the United States Senate by a vote of 25 to 1, having 
been found guilty of a “ high misdemeanor.” 

Robert Morris Avas well laden Avith depreciated certificates of 
rational indebtedness of every sort. Was he disinterested when he 
advocated a form of government that he might well have belieA^ed 
Avould liaAx made his gamble profitable by sending his holdings to 
par? If he Avas not disinterested and Avas not a grafter, Avhat Avas 
he? What Avould such a man be called to-day? What did Thomas 
Jefferson call such men at the time? Some men had decency enough 
not to gamble in things that their official actions might much increase 
in value. Washington Avas such a man. So Avas Benjamin Franklin. 
There Avei*e others like them. Also there Avere the other kind—the 
Daytons, the Blounts, the Morrises, and many more. 

I take it that I need not consider every member of the Constitu¬ 
tional ConA^ention, since I did so in my book from which you have 
quoted, and for the further reason that the sources of information 
are available to you, as they are to everyone else. If you do not 
regard men like Dayton as grafters, then you and I differ as to what 
constitutes a grafter. 

You ask me (question No. 1) if I am aAvare that the refusal of the 
Federal Constitutional Convention “to assume or pay any of the 
Continental or State paper money (which paper money Avas Avholly 




DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES^ ETC. 29 

repudiated), also its refusal to change or improve the status of the 
Continental debt, was the cause of much factional opposition among 
the influential holders of the repudiated Continental and State paper 
money, as well as of the State debts, to the adoption of the Federal 
Constitution? ” I reply that I am aAvare of this fact. One of the 
reasons for calling the convention was to stop the issue of paper 
money, the same being a sort of “ poor man’s currency,” to which 
the rich were opposed. The rich, however, were not above speculat¬ 
ing in paper money when they could buy it cheaply, and it was this 
group of “influential holders” who made a disturbance both within 
and without the Constitutional Convention. They lost out, it is true. 
Do you know of any gamblers who always win? Merely because a 
gamoler loses, is it to be said that he was not a gambler ? Also, does 
a grafter cease to be a grafter merely because he does not make a 
perfect score in getting the graft that he goes after? 

Replying to question No. 2: I am aware that it Avas by act of Con¬ 
gress, rather than the Constitutional Convention, that the gamblers 
who had bought depreciated Continental bonds were paid the face 
ATilue of the bonds. But right here I can not refrain from commenting 
upon what seems to me to be the peculiarity of your language. You 
say Congress did this “years after the adoption of the Federal Con¬ 
stitution.” How many years after ? The Constitution Avas ratified 
in 1788. According to your oAvn letter, Congress funded these State 
debts betAveen “ 1790 and 1794.” Were the members of the Constitu¬ 
tional ConA^ntion all dead then? Hoav about Hamilton? Do you 
regard six years as a long time? Was not Congress entirely con¬ 
trolled by the same interests that controlled the Constitutional Con¬ 
vention, and were not many members of the convention in Congress? 
After the GoA^ernment Avas organized and Congress met Avas any time 
lost in putting this depreciated paper to par? 

It is not noAv, nor ever has been, my contention that the Con¬ 
stitutional Convention Avas composed of a particularly disreputable 
croAvd of scoundrels Avho ruthlessly gambled aAvay the interests not 
only of their oAvn time but of posterity. I quite agree Avith Prof. 
Max Farrand, Avho said it Avas composed “ of men such as Avould 
be appointed to a similar gathering at the present time”; some 
good and great, some bad and small, some mediocre and of no 
importance. What I object to is the attempt to deify these gentle¬ 
men merely because they are dead. I protest against the teaching 
to each succeeding generation that the framers of our Constitution 
were better or different than the men Avho frame constitutions to¬ 
day. I assert that our forefathers were, like ourselves, influenced 
and sometimes controlled by the economic forces that played around 
their lives. I assert that their moral concepts Avere no higher than 
our own. If such be the facts, their Avqrk is not of divine origin 
and is justly subject not only to criticism but to suspicion. We 
have just had, in the State of Ncav York, a constitutional conven¬ 
tion the personnel of Avhich I have no doubt Avoidd bear faAnrable 
comparison with the personnel of the conA^ention of 1787. I do not 
flatter Elihu Root, the presiding officer, when I say that I belieA^er 
he excels in intellect, though not in political morality, the presiding 
officer of the convention of 1787. Yet Mr. Root has commended a 
proposed constitution that, from the point of vieAV of the public 




30 DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 

interests, is, in my opinion, wide open to attack, and the personnel 
of the convention that framed it contains the names of men who 
are grafters. 

I am not rebuking the human race for being human. It is not 
my contention that only the Socialists are honest and only the 
Socialists are wise. I know Socialists whom I do not consider wise, 
and I know Socialists whom I by no means consider honest. My 
only point is that, in my opinion, we are living under an economic 
system that tends to develop in people much of the worst that is 
in them. I am doing what I can to bring about a better system. If 
that be a crime, gentlemen, as Patrick Henry said, “ may make the 
most of it.” 

I inclose my answer to your other letter, which I printed as an 
editorial in the Appeal to Keason, and which I think you have seen. 


The president of a leading Socialist publication writes: 

I am in receipt of a copy of your letter of September 12, 
addressed to Mr. Allan L. Benson, with your penciled note thereon. 
I have read the letter with interest. Have you addressed a similar 
letter to Prof. Beard? The statements contained in his book are, 
I am certain, based upon substantial evidence. The illustrious 
fathers of our country were apparently quite as shrewd as their less, 
illustrious present-day successors. 


A director of the Rand vSchool of Social Science writes: 

I have the copy of your letter to Allan Benson and Prof. Beard, 
which you kindly sent me. Of course I can not say why they have 
not thus far answered you, unless for the reason that causes most of 
us to neglect many things we intend to do. For my own part, I may 
say that I have long been quite familiar with the facts you cite, but 
that they do not seem to me to have any material bearing on the 
point at issue. The framing of a strong national constitution was a 
conditio sine qua non to the ultimate redemption of the old debts. 
Such a constitution once in force, the payment of these debts was 
practically a foregone conclusion; without it their nonpayment was 
a foregone conclusion. That the thing was not finished by the 
Constitutional Convention, nor by the voters who ratified it, is quite 
true; the essential thing is that the decisive steps were taken by 
the convention. 


The publishers of Beard’s An Economic Interpretation of tlie 
Constitution of the United States write: 

• We thank you for the copy of your letter of September 12, sent 
to Mr. Allan L. Benson, which we have read with much interest. 
Yours, very truly. 

Editorial Department The jNIacmillan Co. 





DUTY OF COURTS TO REFUSE TO EXECUTE STATUTES, ETC. 31 
Exhibit D. 

Letter giving views of leader of movement for initiative, referen¬ 
dum, and recall that legislative autocracy (without Federal council) 
should be substituted for court review. 

1 thank you for your letter of 27th ultimo and copy of Senate 
Document No. 941, Sixty-third Congress. 

The people are rapidly coming to a frame of mind to realize 
that there must be a supreme power in government, and I believe 
they will lodge that power finally with the legislative department. 
I think we could not do worse than leave it with the courts. 

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